03/07/2012

How To Be Both Charming and Scathing

An example from the unanimous opinion in Martel v Clair, decided this week. The issue was what the standard should be when someone facing a death sentence in federal court requests that appointed counsel be replaced. Justice Kagan writes:

The dearth of support for the State's alternative standard reinforces the case for borrowing from § 3006A. Recall that the State thinks substitution proper "only when . . . counsel is completely denied" — which, the State says, occurs when counsel lacks the requisite experience; "actively represents conflicting interests"; or has "total[ly] desert[ed]" the client. Brief for Petitioner 15, 35, 38. As the State acknowledges, this test comes from . . . well, from nowhere. The State conceded during argument that Congress has not considered (much less adopted) the standard in any context; neither has a federal court used it in any case. See Tr. of Oral Arg. 16. Indeed, the standard[*10]is new to the State's own attorneys. As noted earlier, when Clair first requested a change of counsel, the State responded that substitution is a "matter . . . of trial court discretion," based on "the interests of justice." App. 29; see supra, at 3-4. Only later did the State devise its present proposal. Inventiveness is often an admirable quality, but here we think the State overdoes it. To be sure, we must infer a substitution standard for § 3599; in that sense, we are writing on a blank slate. But in undertaking that task, we prefer to copy something familiar than concoct something novel. That enables courts to rely on experience and precedent, with a standard already known to work effectively. [Emphasis added]

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How To Be Both Charming and Scathing

An example from the unanimous opinion in Martel v Clair, decided this week. The issue was what the standard should be when someone facing a death sentence in federal court requests that appointed counsel be replaced. Justice Kagan writes:

The dearth of support for the State's alternative standard reinforces the case for borrowing from § 3006A. Recall that the State thinks substitution proper "only when . . . counsel is completely denied" — which, the State says, occurs when counsel lacks the requisite experience; "actively represents conflicting interests"; or has "total[ly] desert[ed]" the client. Brief for Petitioner 15, 35, 38. As the State acknowledges, this test comes from . . . well, from nowhere. The State conceded during argument that Congress has not considered (much less adopted) the standard in any context; neither has a federal court used it in any case. See Tr. of Oral Arg. 16. Indeed, the standard[*10]is new to the State's own attorneys. As noted earlier, when Clair first requested a change of counsel, the State responded that substitution is a "matter . . . of trial court discretion," based on "the interests of justice." App. 29; see supra, at 3-4. Only later did the State devise its present proposal. Inventiveness is often an admirable quality, but here we think the State overdoes it. To be sure, we must infer a substitution standard for § 3599; in that sense, we are writing on a blank slate. But in undertaking that task, we prefer to copy something familiar than concoct something novel. That enables courts to rely on experience and precedent, with a standard already known to work effectively. [Emphasis added]